Bangalore District Court
T.K.Deepak vs Smt. Latha on 29 August, 2015
9N THE COURT OF THE XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE BANGALORE CITY (CCH.No.6)
This the 29th day of August, 2015
Present: Sri. S.SRIDHARA,
B.Sc.,LL.B.,
th
24 Addl. City Civil & Sessions Judge,
Bangalore City.
O. S. No.2428/2006
PLAINTIFFS: T.K.Deepak,
S/o Sri T.S.Krishna Murthy,
Aged about 36 years,
R/at No.7/1, Haudin Road,
Bangalore - 560 042.
(By Sri.K.V., Advocate)
Vs.
DEFENDANTS: 1. Smt. Latha,
1st Wife of Late Sri Shivaramu,
Aged about 50 years,
2. Sri Vinod Kumar,
S/o Late Sri Shivaramu,
Aged about 30 years,
3. Sri Manoj Kumar,
S/o Late Sri Shivaramu,
Aged about 27 years,
4. Sri Suresh Kumar,
S/o Late Sri Shivaramu,
Since deceased by his
Legal Repersentatives:-
2 O.S. 2428/2006
4(a). Smt. Jyothi
W/o Late Sri Shiva Kumar,
Aged about 25 years,
4(b). Kumari Theju
D/o Late Sri Suresh Kumar,
Since Minor represented by her
Mother & natural guardian,
Smt. Jyothi W/o Suresh Kumar,
Aged about 25 years,
The Defendant No.4(a) hear in
above, the Defendant No.4(a)
& 4(b) are the residents of
Voddara Palya, Gottigere Post,
Uttarahalli Hobli, Bangalore
South Taluk, Bangalore - 76.
5. Smt.Sakamma,
2nd Wife of Late Sri Shivaramu,
Aged about 40 years,
6. Sri.Prakash,
S/o Late Sri Shivaramu,
Aged about 40 years,
Defendants No.1 to 6 are thesd
Residents of Voddara Palya,
Gottigere Post, Uttarahalli Hobli,
Bangalore South Taluk,
Bangalore - 560 076.
7. Sri N.Khaleel,
S/o Noor Sab,
Aged about 49 years,
R/at No.5/84, 8th Main Road,
LIC Colony, 3rd Block,
Jayanagar East,
Bangalore - 560 011.
3 O.S. 2428/2006
8. Smt.Suvarna,
D/o Late Sri Shivaramu,
Resident of Voddarapalya,
Gottigere Post, Uttarahalli Hobli,
Bangalore South Taluk,
Bangalore - 560 076.
(D-1 to 6 and 8 are Compromised with plaintiff
D.7: NR, Advocate).
Date of institution of the suit: 23.03.2006
Nature of the suit: Declaration & Injunction
Date of commencement of 06.02.2013
recording of evidence:
Date on which Judgment was 29.08.2015
pronounced
Duration Days Months Years
06 05 09
JUDGMENT
The instant suit filed by the plaintiff against the defendants is one for declaration to declare that the plaintiff is the absolute owner in possession of the suit schedule property having all manner of right, title or interest over the suit schedule property and defendants have no manner of right or title over the suit schedule property; restraining the defendants from interfering 4 O.S. 2428/2006 with the plaintiff's peaceful, lawful, physical and actual and exclusive possession and enjoyment of the suit property by meddling with the suit property in any manner or from putting up any illegal construction in the suit property or from dispossessing the plaintiff from the suit property either by the defendants themselves or through their workers, henchmen or authorised agents, General power of attorney holders, servants, or any persons claiming any rights in any manner whatsoever under or through the defendants by way of permanent injunction and also for costs and such other reliefs.
2. a) The plaintiff has stated that the land bearing Sy.No.36/7 measuring 0-20 guntas situated at Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk belongs to Smt.Giddamma wife of Gurappa and her son Shivaram. The description of the property is morefully described in the schedule mentioned in the plaint. According to the plaintiff, the said Giddamma wife Gurappa and her son Shivaram sold the schedule 5 O.S. 2428/2006 property conveying all right, title and interest over the suit property in favour of the plaintiff by executing a registered sale deed as per the particulars shown in para-2 of the plaint. He also produced certified copy of the sale deed, Encumbrance Certificate from 1.6.1989 to 31.3.1993, 1.4.1993 to up to date.
b) The plaintiff also further stated that subsequent to he purchasing the suit property, the name of the plaintiff has been mutated in the mutation register as MR No.2/1993-94 and plaintiff's name is also entered in column No.9 and 12(2) of the RTC extract from 1992-93 and his name is continued up to 2004-05 and RTC extracts are also produced.
c) He further stated that the documents produced by the plaintiff clearly establishes that he has been in peaceful, physical, lawful, actual and exclusive possession and enjoyment of the suit property as absolute owner. He also stated that originally the land 6 O.S. 2428/2006 bearing Sy.No.36/7 measures 1-30 acres. On 28.4.1989 the plaintiff had purchased 1-10 acres from one Hanumanthappa as per the registered sale deed. He also stated that an extent of 0-20 guntas of land out of Sy.No.36/7 purchased by the plaintiff is morefully shown in the plaint schedule, which is the subject matter of the present suit.
d) He also further stated that the plaintiff through his GPA holder approached the BDA for development of different survey numbers including Sy.No.36/7 under Group Housing Scheme as per the Government order dated 17.11.1995 in HUD:MNX:341/1995 except the schedule property. The BDA was pleased to permit the plaintiff to develop several lands including the land in Sy.No.36/7 measuring 1-10 guntas and issued work order dated 15.11.2000 in No.2235/2001-02 dated 11.11.2002. According to the plaintiff, the land bearing Sy.No.36/7 has also been converted by the competent authority and conversion order dated 17.11.1999 issued 7 O.S. 2428/2006 in No.B.DIS:ALN:SR(8)121/98-99. According to the plaintiff, subsequent to the order passed by BDA, a private layout was also formed and sites were released by BDA in various survey numbers including Sy.No.36/7, but except an extent of 0-20 guntas i.e. schedule property and all sites so formed in the private land have already been sold.
e) The plaintiff further stated that the schedule property, which is not the subject matter of development order issued by BDA continued to be in uninterrupted peaceful, lawful, physical and exclusive possession and enjoyment of the plaintiff having all manner of right, title or interest over the same as absolute owner thereof. He further stated that he also put up compound wall all along the suit property. Except the plaintiff, nobody else has got any right, title or interest over the suit property. The documents produced by the plaintiff also establish that the 8 O.S. 2428/2006 defendants have absolute no manner of right, title or interest over the suit property.
f) The plaintiff has specifically stated that the 7th defendant, who proclaims to be the GPA holder of Shivaram, who is the son of Giddamma filed writ petition before the Hon'ble High Court of Karnataka in W.P.No.25065-75/2000 along with others seeking writ of Certiorari for quashing the acquisition proceedings of various survey numbers including Sy.No.36/7, which came to be disposed off on 16.12.2003 with certain observations.
g) The plaintiff further stated that the 7th defendant on the basis of the observations made by the Hon'ble High Court of Karnataka in the writ petition filed application before BDA by making false and frivolous averments seeking certain reliefs. On coming to know the same, the plaintiff also field writ petitions before the Hon'ble High Court of Karnataka in W.P.No.34840- 9 O.S. 2428/2006 842/2004 for direction to set aside the exparte order obtained by the 7th defendant. The BDA authority also filed writ appeal before the Hon'ble High Court of Karnataka against the orders passed by the Learned Single Judge. The writ appeal filed by BDA in W.A.809/2004 came to be disposed off on 29.11.2005. The writ petition No.34840-842/2004 filed by the plaintiff also disposed off on 20.11.2005 whereby the order passed by the Learned Single Judge was set aside.
h) The plaintiff further stated that the 7th defendant proclaims that he had entered into a sale agreement with one Shivaram on 26.1.1998 in respect of the suit property and also obtained affidavit from Shivaram. As on 26.1.1998 the said Shivaram had absolutely no right, title or interest over the suit property since he along with his mother Giddamma had already executed a registered sale deed in favour of the plaintiff in 1992 itself. Thus the said Shivaram had no right, title or interest to enter into a sale agreement with 10 O.S. 2428/2006 7th defendant or to execute affidavit in respect of the suit property etc. So, in view of the same, the 7th defendant does not derive any right, title or interest in the suit property. The said Shivaram himself has no right to do so and plaintiff is the absolute owner of the suit property.
i) The plaintiff also further stated that the defendants in collusion with each other are now ascertaining the right without there being any basis on the basis of false and frivolous documents, which came into existence in collusion with each other. Thus the plaintiff filed this suit for the relief of declaration and for injunction. He also further stated that he filed objections before BDA bringing their notice that neither defendants 1 to 6 nor the 7th defendant possessed any manner of right, title or interest over the suit property and any application or representation filed by them will have to be rejected.
11 O.S. 2428/2006
j) According to the plaintiff, on 21.1.2007 the 5th defendant and her followers broke open the lock and occupied the shed in the suit property illegally by committing criminal trespass and thereby plaintiff was dispossessed by the 5th defendant. The 5th defendant is in unauthorised and illegal occupation of the suit property. He also filed complaint before the concerned police against 5th defendant. Hence, the plaintiff is also legally entitled for recovery of possession of the suit property from the 5th defendant.
k) He further stated that the plaintiff and defendants 5, 6 and 7 had compromised the suit on 20.9.2011 before this Court. This Court was pleased to allow the compromise petition on 7.1.2012 and draw the decree as per the compromise petition.
l) In para-12 and para-13, the plaintiff pleaded the alleged interference of the defendants and in para-14, he pleaded cause of action and accordingly praying this Court to decree the suit as prayed for.
12 O.S. 2428/2006
3. The plaint schedule reads as follows:
All that piece and parcel of property measuring 20 guntas in Sy.No.36/7 situated at Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk and bounded on East by: Road, West by: Remaining property in the same Sy.No.36/7.
North by: Property belonging to Sri.
S.Ramesh &
South by: The property belonging to
Sri.Krishna & Abbaiah.
4. Record so also the chief examination affidavit of the plaintiff and the compromise petition field by the plaintiff and defendants 5, 6 and 8 also discloses that defendants 1 to 4 have not field any written statement.
5. a) Defendants 5 and 6 filed written statement and also filed additional written statement denying all the plaint averments and further contended that the suit of the plaintiff for the relief of declaration and permanent injunction is not maintainable for the simple reason that the sale deed if any in the hands of the plaintiff was 13 O.S. 2428/2006 created for the purpose of this case. The sale deed and revenue records and other documents are secured by the plaintiff to knock away the property of defendants 5 and 6. Defendants 5 and 6 further contended that the plaintiff never purchased the schedule property and he cannot purchase the same ignoring the presence of defendants 5 and 6 and the welfare of the 6th defendant.
As could be seen from the alleged registered sale deed produced by the plaintiff, no such minor interest is involved/mentioned. Even if the alleged sale deed is proved by the plaintiff, it is only a sham and non-est in the eye of law.
b) According to defendants 5 and 6, the husband of 5th defendant during his life time and after his death, the 5th and 6th defendants are in peaceful possession of the suit property as true and lawful owners etc. Since the 5th defendant is a widow having no worldly knowledge, she did not concentrate on the sale deed or towards revenue records after the death of her husband. 14 O.S. 2428/2006 Now the plaintiff taking advantage of the said situation appears to have created documents and filed this suit.
c) As could be seen from the alleged sale deed, no manner of interest is involved. The consent of 5th and 6th defendants is also not obtained by the plaintiff. No benefit is derived to the minor child and as such the relief claimed by the plaintiff cannot be granted. The alleged sale deed itself is sham document and non-est in the eye of law and other consequential document does not carry any value at all. There is no cause of action for the plaintiff to file this suit. The 5th and 6th defendants are in peaceful possession of the suit property and hence, the question of interference does not arise at all. The suit is not properly valued and the Court fee paid is insufficient and prays for dismissal of the suit with costs.
6. a) In the additional written statement, the 5th and 6th defendant also contended that the plaintiff with an 15 O.S. 2428/2006 intention to knock off the valuable property of defendants 5 and 6 has made allegations against defendants 5 and 6 stating that during the pendency of the suit, they have broke open the lock and occupied the schedule property. The fact remains that the plaintiff created document styled as sale deed alleged to have been executed by the husband of 5th defendant and filed the present suit. The plaintiff filed this suit only with an intention to harass the defendants 5 and 6 to knock away the valuable property of the defendants 5 and 6. At no point of time, the defendants 5 and 6 made any efforts to break open the lock. Defendants 5 and 6 are in possession of the schedule property as original owners. The schedule property exclusively belongs to defendants 5 and 6. Hence, the plaintiff cannot seek the relief of possession from defendants 5 and 6.
b) They also further contended that the plaintiff has to pay Court fee on the market value of the suit property. The present market value of the suit property 16 O.S. 2428/2006 is Rs.3,000/- per square feet (Rs.3000X21780 Sq.Ft), which comes around Rs.6,53,40,000/-. The suit property has already lost its agricultural nature long back. The defendants are in possession of the suit property by constructing the house. The properties in and around the locality are acquired by BDA and formed layout besides forming private layout etc. Now the suit property is to be treated as non-agricultural property and hence defendants 5 and 6 praying this Court to treat the Court fee issue as preliminary issue and also praying this Court for dismissal of the suit with costs.
7. a) The only contesting defendant in this case is 7th defendant, who filed written statement denying all the plaint averments and further contended that the suit is misconceived. The land bearing Sy.No.36/7 of Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk measures 1-30 acres. The claim made by the plaintiff is false.
17 O.S. 2428/2006
b) The 7th defendant further contended that the plaintiff has not been in possession of the suit property and hence the suit is liable to be rejected. The plaintiff in para-3 of the plaint has stated that he is the absolute owner of 0-20 guntas of land, wherein in para-4 of the plaint, the plaintiff has stated that he has purchased the land to an extent of 1-10 acres and hence the plaintiff is confusing this Court by making contradictory statement. He further stated that as per the version of the plaintiff, when there is dispute with the BDA, the plaintiff cannot venture to purchase the land in question and hence, plaintiff is making false submission to mislead this Court. The plaintiff is also put to strict proof of the work order and other particulars furnished in para-5 of the plaint. The plaint averment at para-6 is partly true that the BDA has formed layout in various survey numbers including the said land in question bearing Sy.No.36/7. But the plaintiff claims that the BDA has taken up the development activities except the plaintiff's 0-20 guntas 18 O.S. 2428/2006 of land is false. The plaintiff has not been in possession and enjoyment of any portion of the said land. The averment made in para-8 of the plaint is nothing to do with the plaintiff. The 7th defendant further stated that he has not furnished false statement before BDA, whereas he has made true statement before the BDA authorities. Regarding para-10 of the plaint, it is true that the 7th defendant has taken GPA from all the owners of the properties and he has sold different sites therein in favour of different purchasers, who have not put up construction and are in actual and uninterrupted possession thereof for all these years. The property originally belongs to joint family. Smt. Giddamma alone cannot sell the same in favour of the plaintiff as claimed/alleged by the plaintiff in the plaint. The 7th defendant has taken GPAs from all the joint family members and he has sold the properties to different individuals as per the registered sale deeds. Hence, the claim made by the plaintiff is false and unlawful. 19 O.S. 2428/2006
c) He also further contended that there is no rival claim or objections by BDA or by any other authority with regard to possession of the property by different owners. The said different persons are in possession of the different sites. He also denied the alleged interference of the 7th defendant. The plaintiff has not been in possession of any portion of the suit schedule property as the different purchasers are in actual and uninterrupted possession and enjoyment of the suit property. The claim of the plaintiff is false. He also stated that there is no cause of action to file this suit. The cause of action stated is imaginary one. The suit of the plaintiff is bad for non-joinder of necessary parties. The said area is now fully developed, the different purchasers have constructed their houses and they are in uninterrupted and lawful and continuous possession therein exercising their right of ownership. Their houses have got all basic amenities etc. The suit is not properly valued and the Court fee paid is insufficient and 20 O.S. 2428/2006 accordingly praying this Court to dismiss the suit with costs.
d) It is also worth to mention that the 7th defendant also preferred RFA in No.630/2012 before the Hon'ble High Court of Karnataka, wherein the Hon'ble High Court of Karnataka observed that the appellant's right will not be affected, since he is not a party to the compromise petition and also observed that the case of the plaintiff and 7th defendant shall be adjudicated separately on merits. Accordingly the Hon'ble High Court of Karnataka also provided opportunity to the 7th defendant to file additional written statement to amended plaint. But inspite of giving sufficient time, the 7th defendant has not filed any additional written statement and accordingly additional written statement of the 7th defendant is taken as not filed on 3.11.2014.
8. a) The 8th defendant has also filed written statement denying all the plaint averments and she 21 O.S. 2428/2006 further stated that the sale transaction between the plaintiff and Giddamma and her son Shivaram is not within her knowledge and also stated that the averments made in para-2 of the plaint is also not within the knowledge of the 8th defendant. In para-3 also, she stated that the sale deed of the plaintiff with Hanumanthappa is also not within the knowledge of the 8th defendant.
b) According to the 8th defendant, the averment made in para-7 of the plaint that the suit property, which was not the subject matter of development order issued by BDA continued to be in uninterrupted peaceful, lawful, exclusive possession and enjoyment of the plaintiff having all right, title and interest over the suit property as absolute owner is also denied as false. In para-7, the 8th defendant also stated that the writ proceedings before the Hon'ble High Court of Karnataka is also not within her knowledge. She also denied the alleged cause of action of the plaintiff. 22 O.S. 2428/2006
c) The main defence of the 8th defendant finds a place in para-15 of the written statement, wherein she has stated that originally the suit property is an ancestral property of 8th defendant. Earlier the grand father of 8th defendant by name Gurappa was the owner of the property and the grand father of the 8th defendant died long back and he died intestate. Defendants 5, 6 and 8 succeeded to the estate of the deceased grand father and they have been in continuous and joint possession and enjoyment of the suit property till today since the property is an ancestral property. The father and grandfather of 8th defendant have no exclusive right, title and interest over the suit property to alienate the same in favour of the plaintiff. The 8th defendant being one of the legal heirs of the family have exclusive right and undivided share and interest in the suit property. The 8th defendant is entitled for 1/3rd share in the suit property. The say of the plaintiff that the grand mother of 8th defendant and the father of the plaintiff 23 O.S. 2428/2006 executed sale deed in favour of the plaintiff is denied as false. She also resisted the suit on several other grounds and prays for dismissal of the suit with costs.
9. Based on the above pleadings of the parties, my learned Predecessors have framed the following issues and additional issues:
1. Whether plaintiff proves that on 21.1.2007 defendant No.5, her followers dispossessed him from the suit schedule property?
2. Whether the plaintiff is entitled for the relief of possession.
Recasted issues:
1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
2. Whether plaintiff proves that he is in possession of the suit schedule property on the date of filing suit?
3. Whether plaintiff proves that he is entitled for the relief of possession?
4. Whether the suit is properly valued and Court fee paid is sufficient?
5. What order or decree?24 O.S. 2428/2006
Additional Issues:
1. Whether the plaintiff proves that on 21.1.2007 5th defendant illegally took possession of the suit schedule property?
2. Whether the plaintiff proves the meddling to the suit schedule property by the defendants?
3. Whether the plaintiff is entitled for relief of injunction as sought?
10. Record also discloses that subsequent to filing of the written statements of defendants 5, 6 and 8, they have compromised the case with the plaintiff by filing compromise petition and accordingly decree was also drawn. Subsequently defendants 1 to 3 and legal heirs of deceased 4th defendant also compromised the case with the plaintiff by filing compromise petition and accordingly a decree was also drawn.
11. Learned counsel for the plaintiff also filed I.A.19 Under Order 14 Rule 5 CPC praying this Court to strike off the issues as shown in I.A.10 and this Court by its 25 O.S. 2428/2006 order dated 23.4.2015 dismissed I.A.10 by holding that by virtue of the powers conferred on the Court Under Order 14 Rule 5 CPC, this Court has got ample power to delete the issues and to recast the issues if Court finds wrongly framed at any time before drawing the decree.
12. So, in view of subsequent development in this case and in view of compromise entered into between the plaintiff and defendants 1 to 6 and 8, the only issues that survive for consideration are:
1. Whether the plaintiff proves that he is the absolute owner of the plaint schedule property as stated in the plaint?
2. Whether the plaintiff further proves that he is in lawful possession of the plaint schedule property as on the date of the suit?
3. Whether the plaintiff further proves the alleged interference of the 7th defendant?
4. Whether the 7th defendant proves that the suit is not properly valued and the Court fee paid is insufficient?26 O.S. 2428/2006
5. What decree or order?
13. In support of the case of the plaintiff, he himself is examined as PW.1 and got marked Ex.P.1 to P.41 and accordingly the closed the evidence of the plaintiff. The 7th defendant is examined as DW.1 and got marked Ex.D.1 to D.14. Ex.D.15 and D.16 both are marked by consent of both the parties.
14. The learned counsel for the plaintiff so also the learned counsel for the 7th defendant filed their respective written arguments.
15. Learned counsel for the plaintiff also relied upon the decision reported in (1993) 3 SCC 573 in the case of Vidhyadhar Vs. Manikrao and another.
16. On the other hand, learned counsel for the 7th defendant also relied upon the following decisions:
1. 2013 SCC 66 The Commissioner, BDA & Another vs. Brijesh Reddy and Another.27 O.S. 2428/2006
2. ILR 2005 KAR 5533 BDA and others Vs. R.Hanumaiah & others.
17. Also heard the arguments of both sides and perused the records.
18. My findings on the above issues are:
Issue No.1: Negative.
Issue No.2: Negative.
Issue No.3: Negative.
Issue No.4: Negative
Issue No.5: As per the final order
for the following;
REASONS
19. Issue No.1 to 3: Since these three issues are
interlinked with each other and require common
discussion of facts, so they have taken together for common discussion to avoid repetition of facts.
20. On perusal of the prayer column, the prayer sought for by the plaintiff with regard to declaration consists of two parts. In the first part, the plaintiff sought for declaration to declare that the plaintiff is the 28 O.S. 2428/2006 absolute owner in possession of the suit property having all manner of right, title and interest over the suit property and the second part consists of declaration to declare that the defendants have no manner of right, title and interest over the suit property and in my opinion, a negative declaration cannot be granted by this Court.
21. The second prayer with regard to permanent injunction is concerned, the plaintiff has sought several reliefs of permanent injunction in respect of the suit property against the defendants.
22. In support of the case of the plaintiff, he relied upon Ex.P.1 to P.41.
23. Ex.P.29 is the registered sale deed dated 11.3.1992 said to have been executed by Smt.Giddamma and her son Shivaram and children of Shivaram since minors by natural guardian/father Shivaram in favour of the plaintiff in respect of the plaint 29 O.S. 2428/2006 schedule property measuring 0-20 guntas of land in Sy.No.36/7 of Kothanur village, Uttarahalli Hobli, Bangalore South Taluk. The sale consideration is shown as Rs.25,000/- and possession of the property is shown to have delivered. The boundaries mentioned in this sale deed are East by road; West by remaining land in Sy.No.36/7. But very intelligently the plaintiff and his vendors never mentioned on the western boundary with regard to the property acquired by the Government as per notification i.e. produced by the 7th defendant as per Ex.D.15. Towards North, it is shown as property of N.Ramaiah and on the South, property of Krishna Reddy and Abbaiah.
24. On careful perusal of Ex.P.29 sale deed, there was total suppression of material fact with regard to the acquisition of Sy.No.36/7 by BDA in the year 1988 and 1994 and pursuant to that, BDA also acquired the very same Sy.No.36/7 measuring 1-30 acres by issuing fresh Notification in the year 1999. So from this, it is crystal 30 O.S. 2428/2006 clear that the vendors of the plaintiff virtually had no subsisting right, title and interest over the suit property to sell the same in favour of the present plaintiff. The plaintiff failed to produce any convincing material before the Court to show that BDA has dropped acquisition proceedings in respect of any portion of the land in Sy.No.36/7 out of the total extent of land acquired measuring 1-30 acres nor to show that the BDA has redelivered the possession of 0-20 guntas of land to the plaintiff's vendors and there is no de-notification of land acquired by BDA by virtue of the notification of the year 1988, 1994 and 1999.
25. Ex.P.1 is the mutation register extract, which is accepted in the name of the plaintiff by virtue of the sale deed dated 11.3.1992 in respect of 0-20 guntas of land in Sy.No.36/7.
26. Ex.P.2 is the RTC in respect of Sy.No.36./7 measuring 1-30 acres for the assessment year 1990-91, wherein Shivaram is shown to be the kathedar and 31 O.S. 2428/2006 cultivator to an extent of 0-20 guntas and the plaintiff T.K.Deepak is shown to be the kathedar and cultivator to an extent of 1-10 acres. The sale deed of the plaintiff Ex.P.29 is dated 11.3.1992 and how the name of the plaintiff finds a place in Ex.P.2 for the assessment year 1991 has not been satisfactorily explained by the plaintiff and his vendor.
27. Ex.P.3 is the RTC in respect of Sy.No.36/7 measuring 1-30 acres for the assessment year 1991-92, wherein the said Shivaram and the plaintiff are shown to be the cultivators and kathedars, but the extent of land in actual cultivation if any has not been mentioned and in this document Ex.P.3, there is no reference with regard to the mutation accepted in the name of the plaintiff as per Ex.P.1.
28. Ex.P.4 to P.7 are all RTC extracts in respect of Sy.No.36/7 measuring 1-30 acres for the assessment year 2001-02 to 2004-05, wherein Column No.12(2) i.e. cultivators column is left blank, but the name of the 32 O.S. 2428/2006 plaintiff finds a place in the kathedar column i.e. column No.9 for the entire extent of 1-30 acres. In column No.9, there is also reference stating that there exists house in the said land (in Ex.P.5 and P.6).
29. Ex.P.8 is the certified copy of the orders passed by the Hon'ble High Court of Karnataka in W.P.No.25065- 75/2000 dated 16.12.2003, wherein the writ petition has been filed by Shivaram the alleged vendor of the plaintiff and others against State of Karnataka and BDA, wherein the Hon'ble High Court of Karnataka disposed off the writ petitions with certain observations. The Hon'ble High Court of Karnataka also observed that the final notification of BDA dated 19.10.1994 was quashed reserving liberty to BDA to proceed with the acquisition proceedings from the stage of preliminary notification. The Hon'ble High Court of Karnataka also observed that pursuant this, the BDA has again issued a notification in the year 1999. Particularly the Hon'ble High Court of Karnataka also observed that the said notification has 33 O.S. 2428/2006 not been challenged in the said writ petition by the petitioners and hence no relief could be granted to the petitioners in the said writ petitions.
30. So, from this, it is crystal clear that even in the year 1999, acquisition proceedings were still pending and when the acquisition proceedings were pending, the plaintiff entered into sale transaction with his vendors under Ex.P.29. This acquisition proceeding referred to in Ex.P.8 is with regard to Sy.No.36/7 of Kothanur village measuring 1-30 acres of land. So, the contents of Ex.P.8 also clearly indicate that the acquisition proceedings were not dropped by BDA authorities. In addition to that, the Hon'ble High Court of Karnataka also observed that if the purchasers of the sites have made an application to BDA for allotment of sites on which they have constructed buildings and the said buildings are existing as on the date of order, the BDA may allot the same in favour of the persons, who constructed the buildings at the rate to be fixed by BDA 34 O.S. 2428/2006 provided that the said construction does not come in the way of execution of scheme framed by BDA and accordingly the purchasers were also permitted to make applications to BDA seeking allotment of sites, wherein they have put up construction, within four weeks from today i.e. from the date of order and if such applications are filed, the BDA was directed to allot the said sites in favour of those persons, who have constructed building and also held that this order shall not be treated as a precedent and with the said observation, the Hon'ble High Court of Karnataka rejected the said writ petitions.
31. Ex.P.8 to P.11 (Ex.P.8 is marked twice) are all RTC extracts in respect of same Sy.No.36/7 measuring 1-30 acres, wherein again column No.12(2) is left blank for the assessment year 2005-06 to 2008-09, but in column No.9, the name of the plaintiff finds a place for the entire extent of 1-30 acres and there is also mention with regard to existence of houses in the said land and also with regard to the existence of sites in the said 35 O.S. 2428/2006 survey number. It is also worth to mention at this stage itself that as per Ex.P.8 the orders of Hon'ble High Court of Karnataka, the BDA reinitiated the acquisition proceedings in 1999. When the acquisition proceedings were pending, the name of the plaintiff is shown to be the kathedar in the RTC for the year 2005-06 to 2008-
09. Now and on what basis the name of the plaintiff is shown to be the kathedar to an extent of 1-30 acres has not been satisfactorily explained by the plaintiff. This is also in view of the fact that Ex.P.1 mutation clearly reveals that the mutation was accepted in the name of the plaintiff only to an extent of 0-20 guntas in Sy.No.36/7.
32. Ex.P.12 to P.15 are all RTC extracts in respect of very same Sy.No.36/7 measuring 1-30 acres for the assessment year 2009-10 to 2012-13, wherein for the first time the name of the plaintiff finds a place in cultivators column i.e. column No.12(2) and also in Column No.9, but strangely for extent of 1-30 acres and 36 O.S. 2428/2006 in these RTC extracts also, there is mention with regard to sites that were formed in the said Sy.No.36/7. So, from this, it is crystal clear that the BDA has taken possession of the property in Sy.No.36/7 measuring 1- 30 acres by initiating final notification in 1999. But inspite of that, on what basis RTC was made out in the name of the plaintiff has not been satisfactorily explained either in the plaint or in the chief examination of the plaintiff.
33. Ex.P.16 is the certified copy of the Encumbrance Certificate from 1.6.1999 to 31.3.1993, which depicts the sale transaction between the plaintiff and his vendors as per Ex.P.29. Ex.P.17 to P.19 are all certified copies of nil Encumbrance Certificates issued for the period from 1.4.1993 to 31.3.1995, 1.4.2004 to 19.6.2010, 19.6.2010 to 4.2.2013, which clearly reveals that Sy.No.36/7 measuring 0-20 guntas has not been encumbered for the said period.
37 O.S. 2428/2006
34. Ex.P.20 to P.24 are all tax paid receipts paid by the plaintiff on 25.5.2010, 11.5.2011, 25.4.2012 in respect of Sy.No.36/7 for the assessment year 2008-09 to 2012-13, wherein only khatha number is mentioned, but extent is not shown. The RTC extract i.e. produced by the plaintiff clearly reveals as if plaint schedule property is an agricultural land, but tax has been paid by the plaintiff under Ex.P.20 to P.24 as if schedule property is having khatha No.36/7.
35. Ex.P.25 is the certified copy of the Judgment passed by the Hon'ble High Court of Karnataka in Writ Appeal No.809/2004 dated 29.11.2005, wherein the Hon'ble High Court of Karnataka allowed the said writ appeal by setting side the orders passed the Hon'ble High Court of Karnataka in writ petition Nos. 25065- 75/2000, which is marked in this case as per Ex.P.8 in so far as it relates to the directions given at paraq-4(1) to para-4(4).
38 O.S. 2428/2006
36. In addition to that, the Hon'ble High Court of Karnataka also observed that the petitioners were given liberty to approach BDA by way of representation with regard to their grievances if any and accordingly eight weeks time was granted to each of the petitioners to file appropriate representation in the manner and also observed that if the BDA is satisfied, the BDA was directed to consider the matter in accordance with law in the manner known to law and accordingly writ appeal was allowed. However no material is placed by the plaintiff or his vendor or the purchasers of the alleged sites to show that the alleged site holders have approached the BDA seeking allotment of their respective sites in their names as per the observations made by the Hon'ble High Court of Karnataka in the orders as per Ex.P.8 and Ex.P.25.
37. Ex.P.26 is the certified copy of the compromise petition field in this case by the plaintiff and defendants 5, 6 and 8, wherein the plaintiff and defendants 5, 6 and 39 O.S. 2428/2006 8 praying this Court to decree the suit as per compromise petition. Accordingly the decree was passed on 7.1.2012 and permanent injunction was granted against the defendants 5, 6 and 8. On careful perusal of Ex.P.26 compromise petition, nothing is whispered anything about acquisition proceedings initiated by BDA on 1988, 1994 and 1999. Defendants 5, 6 and 8 go to the extent of saying that they have not executed any GPA in favour of the 7th defendant or to any persons at any point of time.
38. It is worth to mention at this stage itself that the defendants 5, 6 and 8 by receiving extra amount from the plaintiff to an extent of Rs.2,25,000/- and accordingly entered into compromise with the plaintiff.
39. Ex.P.27 is the order passed by this Court in pursuance of the compromise petition filed by the plaintiff and defendants 5, 6 and 8 and accordingly decree was drawn as per the certified copy of the decree i.e. produced and marked as Ex.P.28.
40 O.S. 2428/2006
40. Ex.P.30 is the certified copy of the orders of the writ petition in W.P.No.34840/2004 dated 30.11.2005, wherein the plaintiff and others filed this writ petition against BDA, the alleged vendor of the plaintiff by name Shivaram and others, wherein the Hon'ble High Court of Karnataka observed that in the light of the orders passed by the Hon'ble High Court of Karnataka in Writ Appeal No.809/2004 dated 28.11.2005, liberty was also reserved to the petitioners in W.P.No.34840/2004 to submit their representations with a view to protect their interest in the manner known to law and if any such representations are made by the petitioners, they have to be considered by BDA in accordance with law.
41. It appears that the plaintiff nor the vendors of the plaintiff have not produced any documents before the Court to show that infact they approached BDA authorities in pursuance of the orders of the Hon'ble High Court of Karnataka in Writ Petition No.34840/2004. This writ petition is also in respect of Sy.No.36/7 41 O.S. 2428/2006 measuring 1-30 acres, but not in respect of 0-20 guntas of land as claimed by the plaintiff in the plaint schedule. This writ petition was filed in the year 2004, but plaintiff's sale deed Ex.P.29 was dated 11.3.1992. So, from this, it is also crystal clear that acquisition proceedings were not completed even as on the date of filing of the writ petition before Hon'ble High Court of Karnataka in W.P.No.34840/2004.
42. In addition to all these, the plaintiff failed to produce any documents before the Court to show infact BDA authorities dropped the acquisition proceedings in respect of Sy.No.36/7 measuring 1-30 acres or to show that the acquisition proceedings were dropped in respect of 0-20 guntas of land as claimed by the plaintiff in the plaint schedule. No document has been produced by the plaintiff to show that BDA infact released 0-20 guntas of land in favour of the vendors of the plaintiff by name Giddamma and Shivaram nor in favour of the present plaintiff.
42 O.S. 2428/2006
43. Ex.P.31 is again certified copy of the orders passed in Writ Petition No.25065-75/2000, which is already produced and discussed as per Ex.P.8.
44. Ex.P.32 is the registered release deed dated 25.9.2014 executed by defendants 1 to 3 and defendant 4(a) and 4(b) in favour of the present plaintiff relinquished their right and title over 0-20 guntas of land in Sy.No.36/7 that too after receiving the amount from the plaintiff to an extent of Rs.8,00,000/- i.e. Rs.2,00,000/- each in favour of defendants 1 to 3 and legal heirs of defendant No.4. It is also worth to mention that as per the orders passed by this Court on I.A.9, there is a reference stating that defendants 1 to 4 have not filed written statement and without participating in the proceedings by filing written statement, defendants 1 to 3 and legal heirs of defendant No.4 executed release deed in favour of the plaintiff by receiving the amount from the plaintiff as shown in Ex.P.32.
43 O.S. 2428/2006
45. Ex.P.33 is the certified copy of the compromise petition field by the plaintiff so also defendants 1 to 3 and legal heirs of 4th defendant, wherein praying this Court to decree the suit in terms of compromise petition filed by the plaintiff and defendants 1 to 3 and legal heirs of 4th defendant and they have entered into compromise by receiving the amount from the plaintiff as shown in Ex.P.32 release deed. Even in this compromise petition also, both the parties never whispered anything about the acquisition proceedings initiated in respect of Sy.No.36/7 measuring 1-30 acres and without disclosing the true facts, they have entered into compromise. Ex.P.34 is the certified copy of the decree that was passed by this Court in pursuance of Ex.P.33, which is filed by the plaintiff and defendants 1 to 3 and legal heirs of 4th defendant.
46. Ex.P.35 is the RTC in respect of Sy.No.36/7 for the assessment year 2014-15, wherein the plaintiff is shown to be the kathedar and cultivator to an extent of 0-20 44 O.S. 2428/2006 guntas of land and BDA is shown to be person in possession and kathedar in respect of remaining extent of 1-10 guntas of land. It is only for the first time in this document Ex.P.35, the plaintiff is shown to be the kathedar and cultivator in respect of 0-20 guntas of land in Sy.No.36/7, though plaintiff purchased the alleged plaint schedule under Ex.P.29 on 11.3.1992. On what basis khatha was bifurcated in the name of the plaintiff has not been satisfactorily explained and it is for the first time, there is a reference in this Ex.P.35 with regard to the mutation entries that was passed as per Ex.P.1.
47. Ex.P.36 is the certified copy of the RTC in respect of Sy.No.36/8, which is not the subject matter of the suit, but this document indicates that the BDA is the kathedar of Sy.No.36/8 in respect of 1-25 acres of land. However the name of the 7th defendant also finds a place in column No.12(2).
45 O.S. 2428/2006
48. Ex.P.37 and P.38 both are certified copies of mutation in MR No.T14/2012-13, wherein khatha has been made out in the name of BDA in respect of Sy.No.36/7 to an extent of 1-10 acres. But there is no reference in this document with regard to mutating the khatha in the name of the plaintiff for the remaining extent of 0-20 guntas of land in Sy.No.36/7.
49. Ex.P.39 is the certified copy of the mutation extract in MR No.T14/2012-13, which clearly indicates that the khatha has been mutated in the name of the BDA to an extent of 1-00 acre of land in respect of Sy.No.38/2, which is not the subject matter of the suit.
50. Ex.P.40 is the certified copy of the conversion order dated 29.11.2004, wherein permission was accorded for conversion of Sy.No.36/8 measuring 1-25 acres for non-agricultural purpose. On perusal of the boundary furnished in the schedule, there is no reference with regard to Sy.No.36/7 on any side of 46 O.S. 2428/2006 Sy.No.36/8. But towards North, it is shown as the land belongs to Shivaram and Ramaiah.
51. Ex.P.41 is the certified copy of the sale deed dated 16.4.2004 executed by N.Khaleel, who appears to be the 7th defendant in favour of Aishwarya Shelters Pvt. Limited in respect of site No.74 and 73 carved out of Sy.No.36/8, which is also not the subject matter of this case. However towards North, it is shown as Sy.No.36/7, but there is no reference with regard to Sy.No.36/7 measuring 1-10 acres or 0-20 guntas as claimed by the plaintiff in the plaint.
52. On the other hand, the 7th defendant has relied upon Ex.D.1 to D.16.
53. Ex.D.1 is the agreement of sale executed by Moogappa and others in favour of 7th defendant in respect of site No.5 formed in Sy.No.36/7 and this sale agreement might have been produced to show Sy.No.36/7 is no more an agricultural land. 47 O.S. 2428/2006
54. Ex.D.2 is the certified copy of the agreement of sale dated 3.3.2004 executed by Nallappa and others in favour of 7th defendant in respect of property bearing khatha No.54, assessment No.36/7 and at best, this document shows that the 7th defendant might be an agreement holder.
55. Ex.D.3 is the certified copy of the agreement of sale dated 28.7.2004 executed by the 2nd defendant in favour of 7th defendant in respect of property bearing khatha No.36/7. Site number is not mentioned and survey number is also not mentioned and this document also clearly indicates that Sy.No.36/7 is no more an agricultural land.
56. Ex.D.4 is again agreement of sale dated 21.7.2005 executed by Moogappa and others in favour of one Mohammed Farooq, which is in respect of site No.5, khatha No.36/7. From this it is also crystal clear that Sy.No.36/7 is no more an agricultural land. Ex.D.5 is 48 O.S. 2428/2006 one more agreement of sale dated 27.7.2004 executed by Smt.Lathamma and others i.e. defendants 1, 3 and 4 in favour of 7th defendant, which is also in respect of khatha No.36/7 and 36/8. Ex.D.6 is the certified copy of the sale agreement dated 20.8.2004 executed by Nallappa and others in favour of 7th defendant Khaleel, which is in respect of property bearing khatha No.54, assessment No.36/7 of Kothanur village. Ex.D.7 is another sale agreement dated 29.7.2004 executed by Sakamma in favour of 7th defendant in respect of property bearing khatha No.36/5. Either the site number or the survey number is not mentioned in Ex.D.6 and Ex.D.7.
57. Ex.D.8 to D.13 are all Encumbrance Certificates, which depicts the agreement of sale transaction produced by the 7th defendant as per Ex.D.1 to D.7. Ex.D.14 is the nil Encumbrance Certificate in respect of property bearing khatha No.54.
49 O.S. 2428/2006
58. Ex.D.15 is an important document, which clearly clinches the issue and this document Ex.D.15 is marked by consent of both the parties. Ex.D.15 is the Final Notification dated 5.4.1999 issued by BDA, which shows the particulars of the property that was acquired by BDA at Kothanur Village including Sy.No.36/7 measuring 1- 30 acres, wherein boundary was given for the entire extent of 1-30 acres of land. One Kanda and Hanumantha are shown to be the kathedars/ anubhavadars of Sy.No.36/7 measuring 1-30 acres even in the year 1999, when final notification was passed on 5.4.1999. As against this order, the plaintiff produced Ex.P.29 sale deed to show that he has purchased 0-20 guntas of land in Sy.No.36/7, which appears to be a portion of the total extent of land measuring 1-30 acres. The contents of Ex.D.15 also indicate that the final notification in respect of acquisition of Sy.No.36/7 measuring 1-30 acres was passed on 5.4.1999. When such being the case, in my opinion, the alleged vendors 50 O.S. 2428/2006 of the plaintiff by name Giddamma and Shivaram cannot convey any title to the present plaintiff in respect of Sy.No.36/7 measuring 0-20 guntas as shown in sale deed Ex.P.29 and as shown in plaint schedule.
59. In addition to that, Ex.D.15 also clearly indicates that a notification Under Section 16(2) of the Land Acquisition Act 1894 was also initiated and accordingly orders was passed in No.BDA/SALAO/PR/C5/169/2011- 12 dated nil, wherein LAC case was also initiated in respect of Sy.No.36/7 measuring 1-10 acres in LAC No.81/1994-95. However virtually there is no document on record to show that proceedings were dropped in respect of remaining 0-20 guntas of land in Sy.No.36/7. Plaintiff failed to produced any documents in respect of proceedings No.LAC 81/1994-95 to show before the Court to what extent of land the alleged owners of the land got compensation from the competent authorities.
60. In Ex.D.15 the final notification issued on 5.4.1999, the entire Sy.No.36/7 measuring 1-30 acres is 51 O.S. 2428/2006 acquired, wherein the boundary has been furnished for the entire extent of land measuring 1-30 acres.
61. On perusal of Ex.D.15, i.e. LAC proceeding that was initiated at Sl.No.54, though 1-10 acres of land is shown to have acquired in Sy.No.36/7 and LAC case number is shown as 81/1994-95 and possession of 1-10 acres of land is shown to have taken on 20.7.2010, but for the said 1-10 acres of land, separate boundary has not been furnished so as to identity the remaining 0-20 guntas of land as claimed by the plaintiff in Ex.P.29 or in the plaint schedule. So, from this it is crystal clear that the property claimed by the plaintiff to an extent of 0-20 guntas is not specifically identifiable with specific boundaries out of the total extent of land in Sy.No.36/7 measuring 1-30 acres. That the alleged sale deed of the plaintiff Ex.P.29 is dated 11.3.1992 and the alleged relinquishment deed said to have been executed by defendants 1 to 3 and legal heirs of 4th defendant as per Ex.P.32 is dated 25.9.2014, under which document the 52 O.S. 2428/2006 plaintiff is claiming his title over the 0-20 guntas of land in Sy.No.36/7 has not been specifically pleaded nor proved as required to be proved under law.
62. It appears that it is only in pursuance of Ex.D.15 the final notification issued by BDA, Ex.P.32 Release Deed came into existence. It appears that the plaintiff has furnished only imaginary boundaries in his alleged sale deed Ex.P.29 so also in the plaint schedule. When 0-20 guntas of land as shown in the plaint schedule is not specifically identifiable out of the total extent of land as on the date of Ex.D.15 dated 5.4.1999, in my opinion, the alleged vendors of the plaintiff i.e. Giddamma and Shivaram and his legal heirs cannot convey any better title in favour of the plaintiff in respect of disputed land in Sy.No.36/7 measuring 0-20 guntas.
63. The compromise entered into between the plaintiff and defendants 1 to 3, legal heirs of 4th defendant and 53 O.S. 2428/2006 defendants 5, 6 and 8 appears to be in collusion with each other by suppressing the final notification issued by BDA as per Ex.D.15. As discussed earlier, the BDA has not dropped proceedings in respect of 0-20 guntas of land, which is now claimed by the plaintiff nor redelivered the possession of 0-20 guntas of land in Sy.No.36/7 to the vendors of the plaintiff. So from this it is also crystal clear that the plaintiff failed to establish his title over the plaint schedule property measuring 0- 20 guntas and he also failed to establish his lawful possession over the suit property as on the date of suit. The documents produced by the plaintiff in my opinion are not sufficient to hold that the plaintiff is the absolute owner of the plaint schedule property nor to establish the fact that defendants have no manner of right, title or interest over the suit property nor to show that the plaintiff is in lawful possession of the plaint schedule property as on the date of the suit.
54 O.S. 2428/2006
64. As there is no specific identification of the plaint schedule property as claimed by the plaintiff, in my opinion, the plaintiff is not entitled for the relief of declaration nor permanent injunction and in this regard, I also relay upon the decision reported in AIR 2014 SC 937 in the case of Union of India and others vs. Vasavi Co-operative Housing Society Limited and others, wherein at Head Note-A and B, the Hon'ble Supreme Court held as follows:
(A) Specific Relief Act (47 of 1963), S.34
- Suit for declaration of title -Onus to prove his title is on plaintiff - He cannot succeed on weakness of defendant's case.
(B) Specific Relief Act (47 of 1963), S.34
- Evidence Act (1 of 1872), S.114 -
Suit for declaration of title - Revenue records - Not proof of title.
65. In the written statement filed by the defendant No.7, he also never whispered anything about the acquisition of the land by BDA in respect of Sy.No.36/7 measuring 1-30 acres. The plaintiff intelligently has not 55 O.S. 2428/2006 made the BDA in this case as party. The 7th defendant in his written statement has taken a specific defence at para-15 contending that the suit is bad for non-joinder of necessary parties. The plaintiff denied the opportunity to the BDA to put forth their written statement in this case and also denied the opportunity to BDA authorities to put forth their documents before the Court and further to show before the Court as to whether the BDA has taken possession of 1-30 acres of land or 1-10 acres of land in Sy.No.36/7.
66. In addition to all these, the plaintiff nor the alleged vendors of the plaintiff never questioned the acquisition proceedings of BDA before the competent Court i.e. issued as per Ex.D.15 and this aspect is also clear from the orders passed by the Hon'ble High Court of Karnataka in S.P.No.25065/75/2000 at para-1.
67. In this regard, I also relied upon Sec.48 of the Karnataka Land Acquisition Act and same reads as follows:
56 O.S. 2428/2006
Completion of acquisition not compulsory, but compensation to be awarded when not completed:- (1) Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.
(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.
(3) The provision of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section.
68. So, in view of Section 48 of Karnataka Land Acquisition Act, the only option if any open to the owners of the land is to seek compensation or damages if any from the concerned authorities in respect of property so acquired.
69. In addition to that, the learned counsel for the 7th defendant in his written arguments also highlighted all these aspects with regard to Notification issue by BDA 57 O.S. 2428/2006 on 26.5.1988, 2.6.1988, 9.6.1988 and subsequent Notification dated 5.4.1999 and accordingly produced Ex.D.15 and also highlighted the fact that the Final Notification as per Ex.D.15 was also passed showing Hanumantha and Kanda as the kathedars of the said property. It is also highlighted in the written arguments of the 7th defendant that if the BDA has delivered possession of the property to the plaintiff, the question of plaintiff seeking relief from the hands of this Court does not arise and also stated that the revenue records do not give any title to the plaintiff over the suit property.
70. Ex.D.16 is the notice issued from the Office of BDA dated 31.5.1999 to one Hanumantha as the owner of Sy.No.36/7 measuring 1-30 acres to appear before the authority on 10.6.1999. So, from Ex.D.16, it also indicates that the vendors of the plaintiff have no better title to convey property in favour of the present plaintiff under Ex.P.29 or under Ex.P.32.
58 O.S. 2428/2006
71. The plaintiff, who is examined in this case as PW.1, has reiterated the plaint averments. However PW.1 in his cross-examination goes to the extent of saying that the second wife of Shivaram illegally came in possession of the suit property. A specific suggestion is made in the cross-examination of PW.1 by suggesting that plaint schedule property is the joint family property of Gurappa to which PW.1 has pleaded his ignorance. PW.1 has admitted with regard to GPA executed in favour of 7th defendant by the family members of Gurappa, but also stated that he do not know who infact executed the said GPA. However PW.1 in his cross-examination denied the suggestion that the 7th defendant is in possession of the plaint schedule property.
72. The 7th defendant on the other hand is examined as DW.1 and he has reiterated the written statement averments. Nothing worth is elicited in his cross- examination to show that the vendors of the plaintiff have got valid right, title and interest nor possession 59 O.S. 2428/2006 over the plaint schedule property to convey the same in favour of the plaintiff under Ex.P.29 or under Ex.P.32. Nothing worth is also elicited in his cross-examination to show that the acquisition proceedings were dropped in respect of plaint schedule property by BDA authorities. Nothing worth is also elicited in the cross-examination of DW.1 to show that infact plaint schedule property measuring 0-20 guntas in Sy.No.36/7 was re-conveyed to plaintiff's vendors.
73. Learned counsel for the 7th defendant also relied upon the decision reported in 2013 SCC 66 in the case of The Commissioner, BDA and another vs. Brijesh Reddy and Another. The ratio and the principles laid down in the said decision in my humble view is applicable to the case hand.
74. Also perused the decision relied upon by the learned counsel for the plaintiff reported in (1999) 3 Supreme Court Cases 573, the same in my humble 60 O.S. 2428/2006 view will not help the plaintiff in any way considering the facts and circumstances of the present case.
75. Hence, on careful perusal of the material available on record, the plaintiff thoroughly failed to prove that he is the owner of the suit property and also failed to prove that he is in lawful possession of the suit property as on the date of the suit. The plaintiff also failed to prove the alleged interference of the 7th defendant. Accordingly I answer issue Nos. 1 to 3 in the 'negative'.
76. Issue No.4: The 7th defendant in his written statement has also taken the defence contending that the suit is not properly valued and the Court fee paid is insufficient. The valuation slip produced by the plaintiff on 7.8.2010 discloses that the plaintiff has valued the subject matter of the suit Under Section 24(a) and 24(b) of the Karnataka Court Fees and Suit Valuation Act so far it relates to declaration is concerned and accordingly paid Court fee to an extent of Rs.1,48,625/- (33,375+ 61 O.S. 2428/2006 33,375+81,875). In addition to that, my learned Predecessor in his order dated 3.7.2010 held that the Court fee paid is sufficient. So, the 7th defendant failed to establish the fact that the suit is not properly valued and the Court fee paid is insufficient. Accordingly, I answer issue No.4 in the 'negative'.
77. Issue No.5: In view of the findings on issue No.1 to 4, I proceed to pass the following:
ORDER The instant suit filed by the plaintiff against 7th defendant is hereby dismissed with costs.
The suit is already compromised between plaintiff and defendants 5, 6 and 8 on 7.1.2012.
The suit of the plaintiff against defendants 1 to 3 and legal heirs of 4th defendant is also compromised as per the Court order dated 23.10.2014.
62 O.S. 2428/2006
However, it is also made it clear that the compromise entered into between the plaintiff and defendants 1 to 6 and 8 is not binding on the BDA authorities as BDA authority is not the party to the suit nor to the compromise decree.
(Dictated to the Judgment Writer, computerized by her, then corrected, signed and pronounced by me in Open Court on this the 29th day of August, 2015).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1: T.K.Deepak List of documents marked for the plaintiff:
Ex.P.1: Mutation register extract. Ex.P.2-15: RTC extracts. Ex.P.16: Certified copy of Encumbrance Certificate.
Ex.P.17-19: Certified copy of nil Encumbrance Certificates.
Ex.P.20-24: Tax paid receipts. Ex.P.25: Certified copy of Judgment passed in Writ Appeal No.809/2004.63 O.S. 2428/2006
Ex.P.26: Certified copy of compromise petition. Ex.P.27: Orders passed by this Court on compromise petition.
Ex.P.28: Compromise decree.
Ex.P.29: Registered sale deed dated 11.3.1992.
Ex.P.30: Certified copy of Orders passed in
W.P.No.34840/2004.
Ex.P.31: Certified copy of orders passed
inW.P.25065-75/2000.
Ex.P.32: Release deed.
Ex.P.33: Certified copy of compromise petition.
Ex.P.34: Certified copy of the compromise decree.
Ex.P.35-36: RTC extracts.
Ex.P.37-39: Mutation register extract.
Ex.P.40: Conversion order. Ex.P.41: Sale deed dated 16.4.2004.
List of witnesses examined for the defendant:
D.W.1: N.Khaleel.
List of documents marked for the defendant:
Ex.D.1 to Agreement of sale. D.7:
Ex.D.8 to Encumbrance Certificates. D.13:
Ex.D.14: Nil Encumbrance Certificate.
Ex.D.15: Final Notification.
Ex.D.16: Notice issued by BDA.
(S.SRIDHARA)
XXIV ADDL.CITY CIVIL &
SESSION JUDGE,
BANGALORE CITY.